Developments the day before an ET!!!!! *************Won********* ******

[hhh_88873]

Well I wish I could as optimistic as you, but I dont think the judge is going to see it as irrelevant. Im fully anticipating a fight to get it heard.

[Marieleeza]

Well I wish I could as optimistic as you, but I dont think the judge is going to see it as irrelevant. Im fully anticipating a fight to get it heard.

You fit the criteria for wrongful dismissal but that is not a lucrative claim as there is no compensation available for injury to feelings or lost earnings.

 

How are you planning to argue against 12 month rule for unfair dismissal?

[hhh_88873]

Breach of statutory rest periods, employee was named as a driver, but regularly only got 4-5 hours rest between shifts, sexual discrimiation, employer agreed to allow employee time off for birth of daughter but 6 months later point blank refused any leave, or to even take already accrued holidays, breach of european human rights section 6 & 6.2 right to trial by jury and right to be inccocent until proved guilty. The EHA is gonna be tricky/impossible, but its worth a shot.

[hhh_88873]

Even wrongful dismissal I can file for reinstatement I imagine, and if I win that, automatically I should get lost wages back at least.

[Marieleeza]

Breach of statutory rest periods, employee was named as a driver, but regularly only got 4-5 hours rest between shifts, sexual discrimiation, employer agreed to allow employee time off for birth of daughter but 6 months later point blank refused any leave, or to even take already accrued holidays, breach of european human rights section 6 & 6.2 right to trial by jury and right to be inccocent until proved guilty. The EHA is gonna be tricky/impossible, but its worth a shot.

What legal advice have you had?

[hhh_88873]

Other than on here and from the judge? Nothing. All personal research.

[RachelMD]

Oye. Tomorrow.

[hhh_88873]

Beg pardon????

[RachelMD]

Because as with every piece of legislation, you as a tribunal have the power to relax those rules. In the interests of justice and basic fairness, this is clearly one of those cases. And even in the case of the 12 month rule, there is breaches of several acts by this employer, breaches which clearly infringe on statutory rights such as the right to rest periods, the right to have a family life, and perhaps the most important of all, while not outlined in employment law, but most definitely outlined in the most basic of human rights, the right to not be punished for a crime that I did not commit.

 

No H, an ET does not have the power to, at its discretion, waive the 12 month qualifying rule for statutory employment rights.

They can't say, "Well, alright, this employee had only worked for the employer for 8 months. But they were sacked for chewing the end of a biro, and that's obviously a grossly disproportionate sanction. So, this time we're going to give a bit of leeway and let 'em claim UD"

 

To successfully claim unfair dismissal, one must either have statutory employment rights or have been dismissed for a reason relating to a statutory right.

So, if an employee was dismissed for asking for the national minimum wage, then yes they'd be able to claim UD. Or, equally if they refused to break the law and were dismissed then they'd be able to claim.

 

My concern with your claim of UD is that there isn't, or at least you aren't emphasising, a statutory aspect of the event that led to your dismissal.

I'm sure I've mentioned previously exploring the avenue of arguing that acting towards the youth in the manner you did was an act of self-defence, and therefore (possibly) a statutory right.

I'm sure I've also mentioned that I'm not at all sure that that's a valid argument either, but as far as I can see it's the only one you've got.

 

Yes, there may be other aspects to your claim, but those aspects won't carry the UD into ET. It needs to be valid in its own right, or it will be thrown out.

[Marieleeza]

Even wrongful dismissal I can file for reinstatement I imagine, and if I win that, automatically I should get lost wages back at least.

Does this Emplaw information help?

 

It is probably true to say that, as a general rule, wrongful dismissal has little relevance in most employment disputes. However, if it is relevant it is usually extremely important. Wrongful dismissal cases were traditionally dealt with by the courts. However since 1994 Employment Tribunals have had jurisdiction to deal with all wrongful dismissal cases but are not allowed to award more than £25,000 - see Employment Tribunals/jurisdiction of/extension to breach of contract cases . This contrasts with unfair dismissal cases where tribunals can award much greater amounts and discrimination cases where there is no limit on what an employment tribunal can award (see eg Compensation/2009 limit increases ).

 

Cases of wrongful dismissal typically occur when an employer dismisses an employee without giving the notice required by the employee's contract, and without adequate compensation in lieu. In practice it is usually only worth while for the employee to sue if the contract provides a fairly long notice period. This is because damages will be assessed by reference to loss suffered which will normally be limited to the value of lost remuneration and lost "perks" for the period of notice which the employer should have given.

However dismissal without contractual notice is by no means the only way in which wrongful dismissal can occur. If the employer is in breach of any significant term, whether express or implied, of an employee's contract then that employee may be able to resign and claim that he has been constructively dismissed (see notes at constructive dismissal and/or Implied terms in employment contracts ). Depending on the circumstances, the employee may then decide to claim damages for wrongful constructive dismissal (ie breach of contract) rather than compensation for unfair dismissal (see Wrongful dismissal/unfair dismissal and wrongful dismissal compared ). The converse is also true - if an employee is in breach of a fundamental term of his employment contract, it will not be wrongful dismissal (or unfair dismissal) for the employer to dismiss him or her without notice (for an example see Dunn & anr v AAH Ltd [2010] EWCA Civ 183, Court of Appeal on 25th January 2010).In recent years there has been a trend for the distinction between unfair dismissal and wrongful dismissal to be blurred and for the practical importance of the distinction to be gradually whittled away. Nevertheless the distinction is still of great importance even if less so than in the 1980's or early 1990's. The blurring of the practical effect of the distinction is exemplified both by statute (eg the huge increase in 1999 in the maximum unfair dismissal compensatory award from £12,000 to £50,000) and by the courts (see Compensation/£50,000 new limit and Transco plc v O'Brien 2002 ICR 721, CA).

[RachelMD]

I don't see the relevance, MarieLeeza.

In what way was H's circumstance wrongful dismissal?

[Marieleeza]

I don't see the relevance, MarieLeeza.

In what way was H's circumstance wrongful dismissal?

 

He was not guilty but summarily dismissed. There was evidence available (CCTV footage) and representations were made by credible people but employer stuck to decision which weakens the "reasonable belief" argument as fairness would demand that they reconsider. Wrong because he did not do it and, had proper procedure been followed, he would have been cleared.

 

I believe that wrongful dismissal is exempt from 12 month rule but it is not a lucrative claim because there is no "hurt feelings" or future earnings component to compensation.

Edited July 15, 2011 by Marieleeza

[hhh_88873]

I went down the self defense path, but as he only pushed me and threatened me before I removed him from the site, and he threw stones after I removed him, they said that the self defense wouldnt apply as the stones etc were only thrown after I made physical contact with him.

[hhh_88873]

And Im sure I read a case somewhere where the tribunal has the power to examine cases whether the employee had 12 months service or not if it was a clear breach of justice. Just cant remember what the case was.

[RachelMD]

I look forward to reading it.

[mariefab]

On your earlier thread you said this: 'the Working time directive I can prove, but its merely me pointing it out that its very convenient that they got rid of me after I kicked off about it.

 

http://www.legislation.gov.uk/ukpga/1996/18/section/104

 

I think that this should be the focus of your case (not least because you had insufficient length of service to qualify for paternity leave or to claim ordinary unfair dismissal).

In your shoes I'd be looking at whatever evidence you have showing that you complained about the working time issue and anything you have to show what their response was to your complaint.

I'd be saying that the real reason for dismissal was because you made this complaint and that when the incident happened they immediately latched onto it as a way to get rid you (advertising your job before that completed the investigation suggests this) instead of dealing correctly with your complaint.

I also think that it's possible that your former employers may be aware that they are vunerable on the working time issue because they failed to make any reference to it on the ET3 (just focused on the other claims) and have resisted supplying timesheets.

Edited July 16, 2011 by mariefab
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[Marieleeza]

On your earlier thread you said this: 'the Working time directive I can prove, but its merely me pointing it out that its very convenient that they got rid of me after I kicked off about it.

 

'http://www.legislation.gov.uk/ukpga/1996/18/section/104

 

I think that this should be the focus of your case (not least because you had insufficient length of service to qualify for paternity leave or to claim ordinary unfair dismissal).

In your shoes I'd be looking at whatever evidence you have showing that you complained about the working time issue and anything you have to show what their response was to your complaint.

I'd be saying that the real reason for dismissal was because you made this complaint and that when the incident happened they immediately latched onto it as a way to get rid you (advertising your job before that completed the investigation suggests this) instead of dealing correctly with your complaint.

I also think that it's possible that your former employers may be aware that they are vunerable on the working time issue because they failed to make any reference to it on the ET3 (just focused on the other claims) and have resisted supplying timesheets.

 

I think that is very good advice. The case now becomes unfair dismissal after complaining about a statuory right and so 12 month rule does not apply.

[RachelMD]

But to put forward such a hypothesis with any prospect of success, one would require some evidence.

[Marieleeza]

But to put forward such a hypothesis with any prospect of success, one would require some evidence.

Yes that would be necessary, as Mariefab suggested

In your shoes I'd be looking at whatever evidence you have showing that you complained about the working time issue and anything you have to show what their response was to your complaint.

I'd be saying that the real reason for dismissal was because you made this complaint and that when the incident happened they immediately latched onto it as a way to get rid you (advertising your job before that completed the investigation suggests this) instead of dealing correctly with your complaint.

 

Also, if they failed to disclose timesheets or any other relevant documents that were requested, HHH could raise a doubt.

[mariefab]

Agreed Rachel.

 

A lot of the thread/s has focused on the reason that the employer gave as grounds for the dismissal.

I was hoping that h would tell us that he has evidence that he 'kicked off' about the working time issue (hopefully not long before the incident) and evidence that the employer didn't take kindly to having it pointed out.

 

Frankly, if the tribunal didn't have this kind of scenario in mind I can't imagine why the claim has progressed this far; given h's lack of eligibilty on his other claims.

[hhh_88873]

well, I do have evidence such as rotas in my managers handwriting and shifts outlined in my official notebook where they were forcing me to do shifts with as little as 5 hours rest between them. That was raised as a greivance and was ignored by the employer. I raised about 5 different matters following my investigation, such as no notice being given for hearings, them saying If I was found to be guilty of gross misconduct then I wouldnt be paid for my suspension and I also raised the fact that I was being told to finish a 10 hour shift, go home, 5 hours later go do site checks, finish those, then 5 hour later be back in work. Also I was being forced to finish at one site at midnight, drive 20 miles home, then drive 45 miles to be on site for 7am repeatedly. These greivance were NOT heard in seperate greivance hearing, and the discliplinary process was NOT halted until the greivances had been heard as required in the ACAS guidelines.

 

Their findings regarding my greivances were included in the letter that dismissed me after my disciplinary hearing, and they had not even examined my greivances in a seperate hearing.

[hhh_88873]

And Rachel I did indeed 'Kick off' about the working time directives, I told my immediate supervisor twice in the week leading up to my suspension that I wasnt prepared to do the shifts that they were scheduling as I was getting maybe 4 hours sleep if I was lucky, then driving 45 miles, doing 12 hour shift, then driving 45 miles home.

 

Might not be relevant, but I was driving a two tonne land rover discovery at the time, so If I had fallen asleep at the while, someone could have been killed.

[mariefab]

What you need to do is show that you raised the working time breaches before the 'incident' happened. So, what evidence do you have that you did this?

 

What was the very first date that you complained that you were not being given sufficient rest periods between shifts?

Who did you complain to?

How did you complain (verbally/email/ letter)?

If verbally were there any witnesses?

 

What was the response to your complaint, if any?

Who was it from?

How did they respond (verbally/email/letter)?

 

Did you complain about this more than once before raising a formal grievance?

 

On what date did you raise a formal grievance about these working time breaches?

Who did you raise it with?

How did you raise it (verbally/email/letter)?

If written what did your grievance say?

 

Did they acknowledge reciept of your grievance?

If so, how (vebally/email/letter)?

Did they let you know how they would deal with your grievance?

Do you know how they dealt with it (you said that there wasn't a hearing but was there a meeting between management and HR)?

What were their findings on your grievance (in the dismissal letter)?

 

On what date did the 'incident' happen?

[hhh_88873]

I spoke to my immediate supervisor twice in the week before the incident that I was dismissed for. I also received the refusal to allow me any leave/holidays in that week as well.

 

He said that there was nothing they could do, hed change the rotas where he could, but some of the shifts were basically like it or lump it.

 

After that there was no response whatsoever.

 

When the incident occured, I was arrested a couple of days later, then suspended the day after that.

 

They immediately sent me to discipline, and sent me a letter telling me to be in disciplinary hearing the day after I received the letter.

 

I emailed them saying that according to their written procedures, I was entitle to notice to be prepared for both the investigation and the subsequent hearing. They hadnt given me any notice, so unless they were prepared to give me more time to prepare I wasnt going to attend.

 

They sent me an email in respnse saying they didnt have to give me any notice for either meeting, and they would take the meeting in my abscence if I didnt attend.

 

I replied to that with my grievance letter, outlining that I wasnt happy with them trying to force me to attend a meeting with less than 24 hours notice, Thats they had been breaking the working time directive by forcing me to work shifts, especially as a driver, with such little rest periods, that I wasnt happy that the manager who had interviewed me had said that I wasnt to worry, that by the time my daughter was born that the company would look after me and would ensure that I got some leave, and that they had refused to even allow me to take my accrued holidays at the time of my daughters birth.

 

They sent me a letter rearranging my hearing, and completely ignored my grievances. They took my discipline a few days later, and sent me the letter dismissing me, and included their findings about my grievances in that letter. They said that the HR woman had made a mistake about the notice, but had given me more time anyway so it hadnt mattered, said I hadnt qualified for paternity leave hence why I was refused leave, they didnt say a word about why I was refused my holidays, and totally ignored the working time matter.

[RachelMD]

Unfortunately, the Working Time Regulations do include provision for 'shift workers', stating that if your shift pattern changes it may not be possible for the 11 hour daily rest period to be given.

There are also special rules for security guards, which I'll look into.

Regarding the use of a vehicle, there are no special provisions unless you are a HGV/PSV driver.

 

I agree that it's very disagreeable to have less than 11 hours between shifts (I work in the hotel biz, and know only too well), but don't automatically assume that your employer contravened the WTR.